School districts across the country allow their athletic departments and coaches to regulate student player appearances, including rules requiring male players to wear short hair styles. In a recent decision, Hayden v. Greensburg Community School Corporation,the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana, and Wisconsin, struck down such a hair length rule for male basketball and baseball players at an Indiana school. The court found that the rule illegally discriminated against male students. The case is one of the first in decades to address hair length rules in school, and one of the only cases ever to address the important role of such rules in school athletics. Although the decision appears at first blush to be a warning against such rules, a closer look at the decision shows critical limitations that soften its blow. Although the case justifies school leaders taking a close look at hair length rules in male athletics programs, it certainly is not the death knell for such rules when properly designed.

The Court’s Decision

In Hayden, the parents of a middle school basketball player challenged a hair length rule on the boys’ basketball team. According to the coach of the basketball team, the rule was intended to promote team unity and project a “clean cut” image for the team. The student, however, did not “feel like himself” with short hair and alleged that the rule, among other things, discriminated against him based on his gender. The school’s boys’ baseball team had a similar hair length rule, but none of the girls’ teams did.

The Court did not foreclose that a boys’ team could have a hair length rule even if the female team did not have a similar rule. Borrowing a standard from employment discrimination cases dealing with grooming standards, the court assumed (without deciding) that a school may have sex-differentiated standards if they are: (1) in some way justified by community norms; and (2) part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens—if not identical ones—on males and females alike. Applying that standard, the court held that the hair length rule discriminated against male students on the basis of gender based on the second prong of the test. Although the parties stipulated that female players were subjected to some grooming standards, there were no facts regarding the content of those standards, and so the court could not “assess whether the standards [applied to girls] are comparable, [to those applied to boys], notwithstanding the disparity in the hair-length component of the grooming standards.”

Application by School Leaders

The Seventh Circuit’s decision, which is one of the first of its kind and one of the first decisions addressing hair lengths in schools in decades, has garnered media attention and warrants a close look at hair length policies in male athletic programs. But as the summary above shows, there are important limitations necessary to understanding how the case should be applied by school leaders. Specifically, the court did not hold that boys’-only hair length policies are not acceptable in K-12 public schools. Rather, the court suggested that such hair-length policies are acceptable if they are based on relevant community norms and are part of a larger grooming program that includes limitations that are comparably limiting to male and female students.

Notably, it cannot simply be assumed that hair-length policies for boys are based on relevant community norms. The Hayden court questioned whether male hair length standards (which came about decades ago in the 1960s and 1970s) are still relevant community standards today. As the court pointed out, some members of the court “might [even] find themselves in trouble” under such a rule, which prohibited hair worn over the ears, collar, or eyebrows. But as the dissent pointed out, the courts have adopted an extremely deferential view of such questions in the employment context, finding that appearance regulations are defensible if they have some justification in accepted social norms. So school districts should be able to successfully argue that, at least in their communities, hair-length rules for boys are based on relevant community norms.

Care should also be taken to establish that there is an overarching grooming policy that is equally harsh on boys and girls alike. The court provided some examples of questions it might ask to determine if a boys’ hair length policy is part of a larger, consistently-applied grooming program that includes limitations on both male and female students. For example, a court might ask:

Are female students prohibited from wearing jewelry?

Are female students required to wear their hair in any particular way with the goal of having a neat, clean-cut appearance?

Are there limits, other than those on “extreme” hairdos like Mohawks, on how female students can style their hair and are any of those limits based on community norms (e.g., a prohibition on “buzz cuts”)?

Are the respective grooming standards enforced evenhandedly between girls and boys?

Although these are just examples, they provide some insight into the types of limitations on female programs that a court might consider when determining if a grooming policy limits boys and girls equally.

Based on this case, school leaders should take a close look at any gender specific grooming policies for their sports teams to ensure that they are based on relevant community standards and that any limitations that apply to only one gender are based on community norms and are part of a comprehensive grooming policy that, as a whole, is equally burdensome on male and female players. If a rule complies with these standards, it will be in the best position to withstand scrutiny even after the Hayden decision.

The Illinois High School Association (IHSA) board of directors issued a ruling on December 10 in a high-profile case involving four Illinois student athletes. The students, who are Sudanese, were brought to the United States by A-HOPE, an Indiana-based non-profit foundation that aims to help student athletes from Africa obtain educations in the United States. Although the IHSA Board will allow the students to participate in athletics, it also ruled that any student who is referred to an Illinois school by an organization that aims to place student-athletes in an educational setting is presumptively ineligible for athletics. That opinion has implications for schools across Illinois. Accordingly, when student athletes are represented by someone other than their guardian, schools need to ask questions. No matter how noble an organization’s name, schools need to be vigilant against those who would take advantage of children or potentially face eligibility challenges for their students and their programs.

The ruling addresses the eligibility of four young men from Sudan. The students reportedly came to Mooseheart, a suburban Chicago residential school for at-need children, 18 months ago to fulfill dreams of obtaining a United States education to use back home in Sudan. The student visas that allow the students to study here were obtained with the help of A-HOPE, which stands for African Hoop Opportunities Providing an Education. A-HOPE has drawn scrutiny from the sports media and the NCAA in the past two years, most notably standing at the center of the nine-game suspension of Indiana Hoosiers basketball players Hanner Mosquera-Parea and Peter Jurkin. Mosquera-Parea and Jurkin reportedly lived with A-HOPE’s founder, Mark Adams, who was also their AAU coach and assumed legal guardian, during high school.

In its December 10 ruling, the IHSA Board, which is made of up 10 high school principals from around the state, found that “[t]he students were taken advantage of by A-Hope Foundation and people related to that organization.” Nonetheless, the Board deemed the students eligible to participate in interscholastic athletics. The Board noted that the students had already served a 365-day period of ineligibility.

The Board then stated: “henceforth any school accepting referrals of students from A-Hope Foundation or any other organization having as its purpose the placement of student-athletes in educational settings, shall be presumptively ineligible.” Moreover, the Board placed Mooseheart on immediate probation, rendering it ineligible to participate in the 2013 IHSA Basketball State Series, pending Mooseheart’s completion of the following to IHSA Executive Director’s satisfaction: (1) review and refinement of the admissions process to assure compliance with IHSA By-laws and Procedures; (2) training and education program for all Mooseheart coaches and administrators to assure compliance with IHSA By-laws, with particular focus on the unique structure of Mooseheart within the IHSA; and (3) submission of a Compliance Plan. IHSA saidthe school should be able to complete the tasks in time to compete in the 2013 end-of-year state basketball series, which starts in late February.

According to the Mooseheart website, in 2011 the IHSA Board had previously determined that the Sudanese students were eligible for athletics. In November, 2012, however, IHSA Executive Director Mary Hickman notified Mooseheart that the four students were permanently ineligible because they had been “recruited” to compete in athletics at Mooseheart. Mooseheart reportedly said that the IHSA reached this decision after waging “secret investigation at the urging of a rival high school.” Mooseheart then sought and obtained a temporary restraining orderthat allowed the students to continue participating in athletics until the December 10 ruling.

In follow up to my previous blog entry, Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?, the Texas state court issued its ruling last week. The court ruled that the Kountze cheerleaders could continue to display religious-themed banners at football games. The court agreed with the cheerleaders, their parents, and the Texas Attorney General that the speech was individual speech by the students that could not be stifled by the school. As you may recall, that is not the conclusion I reached in my previous blog post. And I’m not the only source that thinks the ruling is legally questionable. This story is far from over, as the school district may appeal the trial court’s decision to a higher court and, even if it does not, a trial will be held in June on as to whether the school district will be permanently enjoined from prohibiting the banners. For that reason, those who have not read the prior post may still find my legal analysis interesting for learning more about the legal issues underlying this case. Read the post here.

Next week a Texas state court will address a lawsuit filed by Kountze High Schoolcheerleaders on some of the hottest issues in Texas: religion, schools, and football. The cheerleaders allege that their school superintendent prohibited them from writing religious messages on banners at football games, in violation of the First Amendment. The case wades into the murky legal waters regarding student-initiated prayer at school events. Was the school district’s decision the right choice? Here is this school lawyer’s take.

The Facts

The Kountze High School cheerleaders, dressed in uniform, hold 30’ x 10’ banners for their football team to run through at the beginning of football games. Cheerleaders use such banners across the country, typically with sayings like “Beat the Bulldogs” or “Trounce the Tigers,” and the cheerleaders are typically allowed to choose what is on the banners. But these Texas cheerleaders chose sayings from the Bible for their signs. An exampleof the language used is: “But thanks be to God, which gives us Victory through our Lord Jesus Christ. 1 Cor. 15:57.”

Based on a letter from the Freedom From Religion Foundation (FRFF), which advocates for the separation of church and state, the school district superintendent prohibited the cheerleaders from unfurling further religious banners. The story since has gone viral, with recent coverage by the New York Times, the Wall Street Journal, the Washington Post and theLos Angeles Times. Last week, a Texas state court judge refused to grant the cheerleaders a temporary injunction, but reportedly did agree to extend a temporary restraining order until the parties could meet in court to address the cheerleaders’ request for a permanent injunction. The parties will face off in court next week.

Tenuous Confidence

Both sides appear quite confident in their legal arguments, but there is no court case that directly addresses the issue before the Texas court. In its written responseto the lawsuit, the school district relied on a 2000 United States Supreme Court case, Santa Fe v. Doe, in which the Court struck down a school district policy allowing student-led prayer over a loud speaker before football games. The FRFF also relied on that decision in a brief in support of the school district. (more…)